Tonight I listened in on the last in Blackboard’s series of Q&A webinars on their patent. To their credit, they let me ask all of my questions. Matthew Small even extended a personal invitation to me to call him with any follow-up questions. I was very happy with all of that. I was far less happy with their answers. But that’s the subject of my next post. For this post, I want to acknowledge what I believe was a genuine effort at outreach on Blackboard’s part and respond in kind. I want to make clear why I could accept Matthew Small at his word regarding Blackboard’s intentions and still conclude that this patent litigation must not stand. I want to say to Mr. Small and the Blackboard management team that this isn’t personal. (more…)
Tag: Desire2Learn
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Inside Baseball and the Blackboard Patent Fight
Correction: I have to apologize for sloppy reading. While my facts pulled from the NYT article are accurate, I should have spent a little more time reading the blog post that referred me to the article. Michael C. Smith, a lawyer in the district who was quoted in the article, believes that the claims are misleading. After digging into the numbers and the context behind the assertions in the article, his own conclusion appears to be that, at least in the last year, the performance of the district is very closely in line with the rest of the nation. If true, that would still leave the speed with which the cases get heard as a strong advantage and, perhaps, a reputation of being plaintiff-friendly that encourages plaintiffs to file there and defendants to settle out of court. At any rate, once again, apologies for posting before looking ath the additional context that was right in front of my face.
You may be wondering why I haven’t posted anything about the recent flurry of court documents from Blackboard and D2L. The simple answer is that I don’t have much to say about them. We’ve entered a phase in which there is a lot of jockeying going on–efforts on each side to win the favor of the judge, efforts to win the favor of the jury, efforts to force the other side to show their hand early, and so on. To give a good blow-by-blow analysis would require me to go way beyond my legal knowledge, which is already stretched about as far as I can take it in good conscience.
That said, if you want to learn a little more of the context that drives some of the inside baseball, you might be interested in reading a long article in today’s New York Times about the docket in which Blackboard has filed suit.
Here are a few details:
- Seventy-eight percent of patent cases that go to trial in this district are found in favor of the plaintiffs. This contrasts with less than fifty percent found in favor of the plaintiff in New York and a fifty-nine percent nationwide average.
- The docket has a history of providing “Texas-sided verdicts to winners.” For example, the court recently awared a $73 million verdict in the TiVo/EchoStar patent suit.
- For these reasons, 95% of defandants in patent suits in this district settle out of court before ever going to trial. (Think about this one for a moment. Given this amazing statistic, how would Blackboard have expected D2L to respond to the suit? Those who have claimed that D2L had to defend themselves lest they become perpetually victimized don’t understand how the system really works.)
- Patent cases are heard and resolved much more quickly in this district, averaging 27 months as opposed to 4 years or more in other districts.
The article is well worth reading in its entirety. Very revealing stuff in a lot of ways.
Found via Michael C. Smith’s East District of Texas blog.
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Desire2Learn Strikes Back
Desire2Learn filed their response to Blackboard’s infringement suit, and they are coming out swinging. They’re claiming that the patent is invalid because Blackboard knowingly refrained from disclosing relevant prior art (including software they had purchased such as Prometheus and previous standards work done through the IMS). As I have discussed here before, Blackboard had an affirmative obligation to disclose any prior art of which they were aware. To do so is immediate grounds for invalidation of the patent. D2L basically calls for that immediate dismissal, payment of their legal fees by Blackboard, and also opens the door for punitive damages. There some other stuff in here that I don’t understand yet; I’ll post follow-ups as smarter people explain the hard parts to me.
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Desire2Learn's Prior Art Needs
A source close to Desire2Learn sent me the following information regarding the information they need to gather for the patent suit:
While anecdotal evidence, e-mails, links and electronic documents are all appreciated and helpful, the very best things are the lowest tech: hard copy users guides from June 1998 and earlier would be useful, especially if they have a big, fat copyright date on the front. Any kind of documentation, release notes, even brochures would be helpful. They can snail mail them to Prior Art, c/o Desire2Learn, 72 Victoria Street South, Suite 401, Kitchener, Ontario N2G 4Y9, Canada.
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Why Desire2Learn CEO John Baker is Our Hero
While most folks paying attention to the Blackboard patent scandal have sympathy for Desire2Learn, I’m not sure how many people realize just how altruistic the company is being by fighting the patent. From a purely financial perspective, it is clearly in D2L’s interest to settle and pay a royalty, even though doing so would harm the rest of the community. I’d like to lay out exactly why I think Desire2Learn is doing an enormous public service and what we can all do to help ensure that their good behavior pays off in the marketplace.
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The Blackboard Patent Crisis at Two and a Half Weeks
While marveling the events of the last several weeks, Jim Farmer suggested that it might be worthwhile to pause and reflect back on the sequence of events. I thought that was a good idea, so here it is. I don’t claim that it is any sense a definitive history. To the contrary, it’s just my personal experience of the situation. But it taught me something, so I thought it might be worth sharing. (more…)
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Desire2Learn Posts Supplemental Materials on Blackboard Patent and Lawsuit
A reader tipped me off that Desire2Learn now has its own blog up about the Blackboard lawsuit, and that the page contains supplemental legal documents that have not been made public before now. There’s a lot here to be read and analyzed. I haven’t had a chance to review them myself thoroughly yet because I didn’t want to wait on getting the info out to the rest of the community. At first blush, though, a few interesting things jump out: (more…)